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(Don’t) Send in the Drones

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The Michigan Court of Appeals issued a recent opinion in Long Lake Township v. Maxon, considering the question of whether a private landowner had a reasonable expectation of privacy that would preclude the government from flying a drone over their property.  The Court concluded that there was an expectation of privacy, and distinguished expectations of privacy from drones from those expected of plane or helicopter surveillance.  (A dissent argues that U.S. Supreme Court precedent on the Fourth Amendment mandated the opposite result.)

The Michigan Court of Appeals issued a recent opinion in Long Lake Township v. Maxon, considering the question of whether a private landowner had a reasonable expectation of privacy that would preclude the government from flying a drone over their property.  The Court concluded that there was an expectation of privacy, and distinguished expectations of privacy from drones from those expected of plane or helicopter surveillance.  (A dissent argues that U.S. Supreme Court precedent on the Fourth Amendment mandated the opposite result.)

The township had previously engaged in litigation over zoning issues and entered into a settlement agreement with the landowner.  Following complaints from neighbors, the township engaged a drone operator to fly a drone over the property and take pictures.  Those pictures allegedly showed additional zoning violations.  The township filed a new suit and the landowner sought to exclude the drone pictures as being improperly obtained.  The trial court denied the request, and admitted the photographs, leading to an appeal.

Michigan law prohibits the use of a drone to take photographs that violate an individual’s expectation of privacy (MCL 259.322), so the Court addressed whether there was an expectation of privacy from drones.  In its analysis, after discussing the use of privacy fences and other screening, as well as the history of the litigation, the Court determined that drones were different from manned aircraft, in that they flew lower, were less noticeable, and there was not an expectation of drone flight in the airspace above the property as there was with manned aircraft.  Accordingly, the Court concluded “that persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.”   

This decision serves as a caution to litigants and others to carefully consider the restrictions (including FAA restrictions on drone operations, which are also discussed by the Court) before sending a drone over private property. 

Opinion:  http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF

Dissent:  http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_48_349230D.OPN.PDF

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